By Harold S. Berman J.D.
A Massachusetts state employee terminated after vacationing in Mexico while on FMLA leave was entitled to a nearly $1.3 million award. The jury found the state agency’s conduct to be outrageous, and the trial court did not err in its jury instructions.
A manager for a state agency who was terminated after taking a fishing vacation to Mexico while on FMLA leave was entitled to a jury’s nearly $1.3 million damage award, ruled the Massachusetts Supreme Court. Moreover, the state high court found that the trial court did not err in giving its jury instructions, finding it properly instructed the jury concerning causation. The state agency did not suffer prejudice from the court’s instruction concerning the location or manner of the employee’s leave, and the agency was not entitled to a jury instruction absolving it from liability for an “honest belief” in its decision (DaPrato v. Massachusetts Water Resources Authority, June 5, 2019, Kafker, S.).
FMLA leave. The employee worked as a manager for the Massachusetts Water Resources Authority (MWRA). In January 2015, he requested nearly two months of FMLA leave beginning in early February for foot surgery and recovery time. The MWRA would not permit him to return to work early without his doctor’s permission, which he could not obtain until his next scheduled appointment on March 26.
The employee grew concerned that he would exhaust his sick and vacation time before he could return to work, and discussed with HR his eligibility for the employer’s salary continuation policy, which provided pay during FMLA leave for a “serious health condition.” HR approved salary continuation benefits based on his physician’s documentation.
Mexico vacation. On March 12, while still on FMLA leave, the employee took a family vacation to Mexico. He returned to work on March 30. After discovering a discrepancy in his paycheck concerning his salary continuation benefits, he requested from HR a copy of the salary continuation policy to avoid potential issues during his anticipated additional FMLA leave for a planned knee surgery. HR internally was annoyed by his request, and did not send him the policy.
Termination. The same day, HR learned that the employee had vacationed in Mexico while on FMLA leave and while receiving salary continuation. HR investigated, believing it inappropriate for an ill or disabled employee to go on vacation. The employer ultimately concluded that the employee lied about his medical conditions for which he received FMLA and salary continuation benefits, and consequently terminated him.
The employee sued the employer in state court, alleging violations of the FMLA, the ADA, and state statute. Following trial, the jury found for the employee, determining that the employer terminated him in retaliation for taking FMLA leave for his foot surgery, and expressing his intention to take future FMLA leave. The employee was awarded over $1.3 million in damages and costs.
The trial court denied the employer’s motion for judgment notwithstanding the verdict, and for a new trial. The employer appealed, claiming it was entitled to a new trial because the trial court issued several erroneous jury instructions. On appeal, the Massachusetts Supreme Court affirmed the trial court’s judgment and damage awards.
Causation standard. The state high court rejected the employer’s argument that the trial court erroneously instructed the jury concerning the causation standard required for the employee to prove his termination was in retaliation for taking FMLA leave. The jury instruction included the employer’s requested “but for” standard for finding retaliation. Moreover, the trial court carefully explained to the jury the requirement of finding retaliation only if “but for the retaliation” for the employee exercising his FMLA rights, the termination would have occurred.
Location or manner of FMLA leave. The employer did not suffer prejudice from the trial court’s jury instruction that the causation element was not satisfied if the employer terminated the employee for “independent reasons” that did not negatively take into account the employee’s leave, or spending “time recuperating in a particular location or in a particular manner.” The employer argued that the instruction’s wording was problematic because it did not allow the jury to consider the employee’s conduct while on vacation, even though it may have thought his conduct was inconsistent with his claimed medical condition.
However, the jury instruction was neither an abuse of discretion, nor prejudicial, the high court determined. The purpose of the instruction was to minimize the risk that the jury would be influenced by the employer’s attempts, through vacation photographs, to stoke the jury’s potential resentment against the employee for taking a vacation while on FMLA leave. The trial court concluded that the jury excessively viewed a photo of the employee standing on a boat and holding up a large fish, and so a curative instruction was needed.
The high court clarified that an employer could consider an employee’s conduct on vacation that was inconsistent with his stated reasons for medical leave, if the employer possessed information about the employee’s conduct at the time it evaluated the employee’s use of leave. The employee’s conduct during his fishing trip raised legitimate questions. However, the employer did not possess the photographs, and so did not know what he did on vacation, when it made its termination decision.
Even if the instruction was an error, it was not prejudicial. The jury awarded punitive damages based on its determination that the employer’s conduct was outrageous. The jury unequivocally credited the employee’s account of events over the employer’s account.
“Honest belief” for termination decision. Nor was it error for the trial court to decline the employer’s requested jury instruction that it was not liable under the FMLA if it terminated an employee based on an “honest belief,” even if incorrect, that he misused FMLA leave. The trial court correctly declined to give the instruction on the ground that the employer would still be liable if it made an “honest but unconsciously biased decision.” Under the FMLA, an employer’s honest belief in its termination decision impacted only the amount of damages, and not underlying liability, and so the employer’s requested instruction was not a correct statement of law.
Damages awards. Additionally, the state high court found no error in the trial court’s damages awards. The trial court correctly concluded it was obligated to award liquidated damages because, although the employer may have honestly believed it was complying with the FMLA when it terminated the employee, it lacked objectively reasonable grounds for its belief. The employer ignored the employee’s FMLA application and medical records when it investigated his conduct, and instead was unduly influenced by its outrage over the employee’s possible additional FMLA leave.
Nor was the punitive damages award erroneous because the jury reasonably could have found the employer’s treatment of the employee, who had no previous history of misconduct, to be egregious or recklessly indifferent. The employee’s conduct was not inconsistent with the recovery time described in his FMLA application, and HR did not present that information to senior management when it recommended termination. Nor did the employer confirm the employee’s medical representations with his doctor.
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